Studies in Contract Law: Cancelling a Mobile Plan With Optus!

So I've been in a bit of a battle with Optus over trying to cancel my mobile plan with them since I'm now living overseas. There's been a bit of back and forth with them since I started complaining on their Facebook page, but not much real progress. I would love to resolve situations like this without resorting to bitching on social media, but since their telephone support follow a script and don't seem to even speak particularly good English, and they make it more or less impossible to find a valid email address to write to (at least I couldn't find one), they didn't leave me much option.

My one avenue (other than going to court) if I can't resolve it with them it to lodge a complaint with the Australian Telecommunications Industry Ombudsman (TIO), but they will only step in if you've made a reasonable attempt to resolve the issue directly.

So I ended up writing quite a long message to Optus laying out the situation and how I want it resolved. I decided to post it here since I'm interested to hear if people think I argued the case reasonably, or if I should have worded things differently, or if you think I'm wrong!

It's also here, of course, because I think if Optus is going to treat its customers badly the least I can do is let other people be aware of it.

So without further ado, here is the full text of the third and final message I wrote to them about the problem:

Let me begin by saying that this is the third time I've had to contact Optus through this form and I won't do it again. If you don't resolve my issue reasonably this time, I will be lodging a complaint with the TIO because I've given you more than enough chance to find a fair resolution, but since you've requested for me to contact you again through this form, I will give it one last try, so please take it seriously.

As I've previously stated, I have moved overseas with 7 months left on my $60 a month iPhone 5 contract, so I need to cancel it. I understand that my iPhone was on a discount payment plan while on contract, and so by leaving the contract I need to pay 7 * $27 = $189 for the remaining cost of the phone. That is reasonable. My problem is with the extortionate cancellation fees you're trying to charge me, making the total cost to cancel first $692, then $520, and the latest offer was $470.

If I pay out the remainder of my contract normally, it is roughly $420. This is the remaining value on my contract. Optus has absolutely no standing in saying that you deserve more than $420 to cancel a contract that only has $420 of remaining value to it. There are no extra costs to Optus for me to leave early. If anything Optus gains by not having to provide 7 months of service it would otherwise have to pay.

Now, you can try to point out the fact that these cancellation fees are stated in our contract. As I pointed out on the Facebook page, these are contract terms that all Optus customers are held to, which include an entire section 2A of customer terms that list all the conditions under which Optus is allowed to change the terms of the contract, and a clause 2A.8 which states that customers effectively can't make any changes to the contract. The point here is that the contracts customers sign with Optus are clearly very one sided and demonstrate that customers effectively have no real bargaining power to negotiate the specific terms of their contracts. You can't reasonably claim that there is any way Optus would have signed an agreement with me that contained more reasonable cancellation terms.

Because of all this, if we were to go to court and Optus tried to claim that it had the right to extract cancellation fees from me greater than the remaining value of the contract, something which is clearly unreasonable, you would almost certainly lose. But of course, I'm now living overseas and am in no position to waste my time taking you to court over $420. However, I'm quite happy to have the TIO look into this if you're unwilling to be reasonable.

Given the particular circumstances that I've been a loyal Optus customer for over a decade, as well as the fact that I'm not trying to cancel my contract to go to a competitor, but simply because I've moved overseas and so can no longer make use of the service, I would think that Optus would have been happy to allow me to terminate at a reasonable cost, rather than make a few short term dollars in return for losing me and my wife as customers forever, along with potential other lost customers due to all the negative representation you're now getting amongst my social networks.

I consider a reasonable resolution of this situation to be a cancellation fee that falls between $189 and $420, plus you switching me to your cheapest prepaid plan so that I can transfer my mobile number to it so that I don't lose it for when I eventually move back to Australia.

If you don't agree to a resolution along these lines then I will submit a complaint to the TIO about the matter, since I will not consider it reasonably settled. I'm sorry for the length of this message, but given the repeated back and forth already over this matter I felt it necessary to spell out the precise details of the situation.

Regards,
Adam Rutkowski

UPDATE:  After receiving this message from me, Optus finally came around and agreed to cancel my contract for $250. That seems somewhat more reasonable, and a hell of a lot better than the $692 they originally tried to charge. Moral of the story: apparently you have to bitch to big companies publicly on social media in order to get reasonable treatment these days.

Creating an Efficient Carbon Tax

The basic idea behind a carbon tax is that you tax companies for the amount of carbon they release into the atmosphere in their operations, which will tend to make less carbon efficient items more expensive for consumers, who will respond by using less of those things and/or switching to more efficient alternatives.

This sounds great except for one key problem: you screw over poorer people in the process. Many of the things that cause carbon emissions are quite basic and needed by everyone, such as electricity and fuel. For people who already struggle to make ends meet, you may end up quite significantly affecting their quality of life. Making a person buy a hybrid car not because it has become cheaper, but because a regular car is now too expensive to run is great unless the person can now no longer afford either. Making someone switch to cycling or walking rather than driving is great if they want the exercise anyway and can afford to take 4 times as long to get anywhere; not so good if they already work long hours and have children to look after and can't afford that loss of time.

The problem here is that you're trying to force change by excessively punishing poorer people and barely affecting rich people. When there is low wealth inequality this has less impact, but wealth inequality has increased by staggering amounts in the last few decades, so a policy aimed at inconveniencing consumers is so much more unfair to the lower class than it would otherwise be.

In the end, what we're actually trying to do is allow people to keep their same quality of life as much as possible, but with lower carbon footprint. Changing peoples' behaviour is generally not a good solution here because it might be done out of desperation, it gives them something extra to have to worry about, and it will probably reduce how much they contribute to other causes besides climate change due to an effect known as moral license. But if you give them alternatives that cost the same and work the same but are less carbon intensive, then you don't add any further burden on them or reduce their quality of life, while still achieving your result.

So, to achieve this, we need two things:

1. More efficient options need to exist
2. Encourage people to switch to those more efficient options

The first point is the most important one. If you make petrol more expensive but don't have equivalently priced non-petrol vehicles on the market, and you're in a country like Australia where many people need to travel large distances and good public transport is often not an option, well, you've basically just fucked over poor people. Rich people will continue driving their Bentleys and Hummers and not give a shit, while the poor people just ran out of options, or other aspects of their quality of life take a hit because they don't have a choice with the car.

So punishing consumers is of no use if companies aren't researching and marketing viable alternatives. So how can we use a carbon tax to incentivise companies directly without letting rich people off the hook and screwing over poor people as a side effect?

What if you design a carbon tax with the simple additional requirement that companies aren't allowed to raise their prices to compensate? This means that the tax eats directly into the company's profits, forcing it to innovate or find alternatives, which is what we need to accomplish in the first place. If something becomes now fundamentally unprofitable under this model, that of course sucks for that company, but maybe that's the result we actually need. And under this model, rich people don't get a free ride. They can't keep on buying high carbon footprint items without caring about a bit of a price hike because you're now hitting the company instead, and this forces them to make better products no matter how rich and thoughtless their customers are.

Actually administering this in practice may or may not be easy, but at least in the case when Australia introduced the 10% GST they made it illegal for companies to raise their prices by more than the GST amount and that worked, so it might not be crazy to do a similar thing here.

As more and more of the world is developing economically and there are billions of people seeking a taste of the good life that developed countries have been enjoying, it's clear that solutions that force people to change their behaviour are never going to be good ones, and that innovating to provide better technological options is the way forward. So we need to structure carbon taxes in a way that focuses on this goal rather than forcing behaviour changes from people. And of course, any ways you can find to stimulate R&D or reward people for getting rid of their inefficient stuff and switching to more efficient stuff is going to help too. But punishing poor people while not really affecting rich people is just kind of a dick move.

The Case for Wild Animals

What is our moral obligation towards the suffering of wild animals? Can we just ignore the immense cruelty inherent in nature, and if not, what can we possibly do to change it?

Humans

Let's start with humans.

We tend to feel as though we have some sort of obligation regarding the well-being of other humans. Certainly, we have no trouble in helping out our family and friends, but to a certain degree, this is selfish. We help them because we care about them, not necessarily because it's the right thing to do. When it comes to strangers, it's not as compelling to us to help them, but we generally feel that we should, at least to some extent. We may give to charities, donate blood or help out a stranger in distress. Fewer people would donate a kidney for a stranger, and even fewer would pay off the debts of someone they don't know.

Now, we remove ourselves one step further and consider distant people suffering in far off countries. Maybe it's millions of people starving in a third world country, or people affected by a natural disaster like a flood or earthquake. We may donate to a charity. Some people may actually go over to that country and help out. But for the most part, we care far more in real terms about a family member breaking their leg than we do about a million distant people dying of hunger.

But even though we feel less obligation the more distant the person affected, we will still tend to admit that there is some level of obligation towards the well-being of all other humans, and to say, "I don't care at all about their suffering" would be morally wrong.

Animals

Now, what about animals?

Firstly, we must acknowledge that at least some animals have the capacity to suffer, feel emotions, and have some amount of self awareness. This will differ amongst species, with, say, a gorilla having a richer inner life than a dog, and a dog having a richer inner life than a worm. But most people would agree that there is clearly something going on in the minds of some species, and that when they feel pain it might not be as rich an experience as for a human, but it's more than just an autonomous reaction like a simple machine.

Not all people acknowledge this, however. Intelligent, well educated people like the Christian theologian William Lane Craig have tried to argue that animals lack awareness of their suffering. I won't bother to deal with these sorts of arguments here except to say that I think Craig intentionally cherry picks some research data that suits him, because if animals don't really suffer, that provides a very convenient excuse for why his loving god would create a world with nature so cruel and full of suffering.

If you don't think any animals really suffer, then compare having a neighbour who sits in his backyard and breaks rocks with a sledgehammer as a hobby, and another one who sits in his backyard and smashes the heads of kittens with a sledgehammer. Unless you think these two things are morally equal, and you would be just as happy living next to either neighbour, then you're acknowledging that at least some types of animal suffering matter, and it's immoral to cause it.

Pets

So, let's say we accept that it's morally wrong to harm our pets. Is it also morally wrong to not step in and stop one pet harming another one? If a pitbull ran into your yard and started savaging your pet cat, would you just say, "ah well, that's nature, I can't interfere", or would you intervene. I strongly suspect the latter.

Now, you could say that we have a certain amount of responsibility towards our pets because we've put them in an unnatural situation, and also often bred survival instincts out of them. I think that this is undoubtedly true. However, at least we're at the point of acknowledging that animal welfare really does matter. Hopefully the trip to this point has been obvious and uncontroversial for you, but it's necessary because it will help prepare your moral reasoning for the next step.

Wild Animals

So does the suffering of wild animals matter, and do we have any responsibility to do something about it?

Many people will argue that when dealing with nature, and not situations caused by human activity, we don't have any obligation to intervene. But would we say the same thing about humans affected by an earthquake or tsunami? We don't stop caring about humans when their suffering is caused by nature, so why should this be an argument when evolution has crafted a system full of cruelty and suffering? And what about the disruption human activity has been causing to ecosystems? If our claiming of land for human uses has disrupted ecosystems and caused animals to suffer and get killed by other animals that they would not otherwise have encountered, are we responsible for that? Or when we introduce a species into a new environment?

What about when a pet escapes into the wild? If we can acknowledge how it can suffer, does this suffering capacity magically disappear the moment it leaves your yard? Shouldn't we care about suffering of other humans and animals regardless of their situation, simply because suffering is bad?

The glaring issue with the suffering of wild animals is the consequences of this. As soon as you start thinking about the issue, it becomes obvious that if we really do have an obligation to stop the suffering of wild animals, there is a serious dilemma regarding what you can possibly do about it. Surely you can't stop the lions from killing the zebras and have them starve to death instead, right? You're just trading one kind of suffering for another. Nature has evolved so that the survival of some creatures requires the suffering and death of others. You can't change that without bringing down the whole system.

But just because there isn't a good answer, doesn't mean that there isn't a problem. We invent excuses and justifications why we shouldn't have to care, because it's far less scary than admitting that we should care, and that there probably isn't a solution. People want to think that all moral dilemmas have an answer, but why should there be any guarantee of this? Why can't moral paradoxes exist for which there is no good answer? Why do we think that a consistent moral theory must be possible, other than to comfort ourselves because the alternative is scary?

Step back from the consequences of the answer and just think about the issue. Stop thinking about whether the moral obligation would be inconvenient. Stop thinking about whether it would make you feel bad. Stop thinking about how you would solve it. Put these things aside and really ask if there is a genuine justification for not caring about the suffering of wild animals.

The Problem with Meritocracy

Meritocracy is the idea that society should reward people based on merit, i.e. if you work hard and/or are more talented you should generally get ahead. Most people tend to agree that this is a good idea, and better than alternatives such as monarchies or other systems that give wealth and power based on a concept of hereditary rights. You often see this issue come up with university selection processes and the use of legacy preferences (i.e. getting a boost because one of your parents went to the university) or the use of affirmative action. Affirmative action also comes up a lot with jobs and the candidate selection process there, with people often trying to argue that it goes against meritocratic principles.

In this post I want to talk about how meritocracy only works if there is real equality of opportunity, how hard this is to achieve in practice, and how programs like affirmative action are not just a temporary measure to increase equality but are in fact a necessary, permanent requirement of any system that genuinely seeks to be a meritocracy.

Enhanced opportunities

It seems fairly obvious that a meritocracy will work if you have a level playing field. If everyone begins under identical circumstances, then rewarding those who work hardest and perform best is probably fair. Now, of course, in our current society we are far from a level playing field, with massive wealth inequality and legacies of discrimination that give some people a much greater advantage than others.

What difference does this make? Well, if you take two children with otherwise identical potential, a child born into a wealthier family is going to have so many more opportunities to realize that potential. Parents can pay for extra tutoring so the child can perform better at school. Children are less likely to have to work in a family business after school, do chores around the house to help their parents out, look after siblings, all of which means more time to study and get ahead.

A child of more educated parents may have a big advantage of being able to learn more directly from their parents. The parents may set a better example of spending spare time reading, studying and doing activities that help improve their own knowledge and education, which can rub off on children who learn to see this as normal behaviour and tend to do the same.

Successful families typically have much better contacts and networking opportunities so the child can meet the right people and build up a social network with much greater opportunities for career advancement.

Level playing field

Now, the big problem is that even if we start from a level playing field, as soon as we begin rewarding some people based on meritocratic principles, things immediately get skewed and unequal. Those who get rewarded are better able to provide their own children (and of course themselves) with the various opportunities mentioned above, and more. It can easily become like a snowball effect, with the playing field becoming less and less level.

Those getting ahead will of course try to defend their success as being meritocratic, but it's actually extremely rare in this kind of environment that someone with very poor opportunities gets ahead. Most of the success stories you hear about involve various factors that can make you say, "ah, well that obviously would have helped them." This isn't to say that hard work isn't also involved, but rather that their chances of success would have been much smaller without the various factors that increased their opportunities.

Gaming the system

The other important thing to consider is that the people who get ahead and make it to the top tend to modify the rules to favour themselves. Whether it is CEOs and top executives awarding themselves huge salaries and bonuses; successful companies lobbying to get rules changed to make it easier to keep their position and make it harder for competition to have a fair chance; or setting up organizational structures and responsibilities in companies to increase their own influence and power; there are countless ways that the people who get ahead meritocratically can set up the system to keep themselves ahead.

So when we combine all of these issues, it's clear that explicit actions need to be taken in order to keep a society meritocratic. Affirmative action is a big one that can help level the playing field for groups that can be clearly identified in a society as being disenfranchised and subject to higher levels of inequality than average. While it may sometimes be a blunt instrument, it can be highly effective and a far better trade off than other alternatives. People who miss out on opportunities due to affirmative action obviously don't tend to feel this way, but this is because they can see a single case of explicit discrimination against them, while not seeing the many implicit and subtler forms of discrimination and reduced opportunities of the people that affirmative action is designed to help.

The estate tax is another tool for keeping meritocracy fair. Often called a 'death tax' by the very people who have benefited from inequality and have a strong incentive to keep it that way, one of the main functions of estate taxes is to stop wealth and power from accumulating and being inherited. If a person required inherited wealth from their parents and can't create it themselves through hard work, then in a meritocracy they don't really deserve it. In practice we tend to think it's fair to allow people to pass on some of their wealth to their children, hence a tax rather than some sort of confiscation. It's hard to see how anyone who claims to be in favour of meritocracy could be against an estate tax in principle.


NOTE: I got a lot of the ideas here from the excellent book Twilight of the Elites by Chris Hayes, which I listened to in audiobook form a few months ago and have been pondering some of the ideas in it since.

Rethinking the Trolley Problem

There is a well known thought experiment called The Trolley Problem. You may have come across it before. A basic description of the problem is:

There is a runaway trolley barreling down the railway tracks. Ahead, on the tracks, there are five people tied up and unable to move. The trolley is headed straight for them. You are standing some distance off in the train yard, next to a lever. If you pull this lever, the trolley will switch to a different set of tracks. Unfortunately, you notice that there is one person on the side track. You do not have the ability to operate the lever in a way that would cause the trolley to derail without loss of life (for example, holding the lever in an intermediate position so that the trolley goes between the two sets of tracks, or pulling the lever after the front wheels pass the switch, but before the rear wheels do). You have two options: (1) Do nothing, and the trolley kills the five people on the main track. (2) Pull the lever, diverting the trolley onto the side track where it will kill one person. Which is the correct choice?

(Source: Wikipedia)

Most people tend to conclude that the right course of action is to pull the lever and kill the one person rather than the five. I also agreed with this until thinking about it some more recently, and I now think that the right choice is probably to not touch the switch and let the five people die. In the remainder of this post I will try to back up my choice and either convince you that it is the right one, or at least give you some good food for thought and make you examine your own moral intuitions a bit.

Utilitarianism

The first thing to point out is that when most people justify why they would pull the switch, they tend to appeal to some form of utilitarianism, that is, given two bad choices, the right one is the one that minimizes death/suffering. This seems fairly sound. After all, if your choice is one person dying or five people dying, why wouldn't you save as many lives as possible?

However, a variant on this problem shows that the reasoning is probably more complex than this. The variant, sometimes called The Fat Man, is a bit contrived and I'm not a big fan of it, but it's the standard one so I'll stick with it:

As before, a trolley is hurtling down a track towards five people. You are on a bridge under which it will pass, and you can stop it by dropping a heavy weight in front of it. As it happens, there is a very fat man next to you – your only way to stop the trolley is to push him over the bridge and onto the track, killing him to save five. Should you proceed?

(Source: Wikipedia)  

Now, it does require a certain amount of leeway to accept that you could be in this situation and somehow be certain that pushing the fat man onto the tracks would definitely stop the trolley, and that nothing else within reach will do.

But, accepting the premises, most people in this case will not support pushing the man onto the tracks, even though the utilitarian argument should still apply in this case. Is it the direct action that puts people off? If the fat man was instead standing on a trap door and you could drop him onto the tracks with a lever, would that make it easier for some people? Or is it the feeling that you're directly causing the death of the fat man, while in the original case the death is an indirect result of your actions?

To be clear, just as I thought the lever should not be pulled in the first example, I think that the fat man should not be pushed in this example.

Reframing the problem

Sometimes clarity can be obtained by reframing a problem and looking at it in a different light. Since this is just a thought experiment, we can take the basic dilemma and set it up using different elements, which has been done in various ways by other people over the years.

One version is The Crashing Plane: a plane has critically malfunctioned and is going down over a populated area. The pilot cannot stop the crash, but he has some limited choice in steering the plane towards a more populated area or a less populated area. He can safely assume that his choice will result in a lot of deaths in the former and less deaths in the latter, but people will die either way.

Most people would say that the pilot should aim for the less densely populated area, and I agree with that choice. Does this contradict my stance on the two previous examples? I don't believe so, and I will explain why shortly.

But first, here is another version of the problem, and the one that for me framed it in a way that made me change my mind about the original trolley problem. This one is The Transplant Problem:

A brilliant transplant surgeon has five patients, each in need of a different organ, each of whom will die without that organ. Unfortunately, there are no organs available to perform any of these five transplant operations. A healthy young traveler, just passing through the city the doctor works in, comes in for a routine checkup. In the course of doing the checkup, the doctor discovers that his organs are compatible with all five of his dying patients. Suppose further that if the young man were to disappear, no one would suspect the doctor.

(Source: Wikipedia)

  

In this case, I would say that it is wrong to kill the one person to save the lives of the other five. An interesting question for this version is whether or not it makes a difference that that the doctor would not be suspected of committing the murder. The purpose of this clause is probably just to simplify the problem to not have any further repercussions on the doctor, so the choice becomes simply about the lives of the five patients and the one traveller. But in this clause I think also lies the key to the whole problem.

Wider consequences

What if we were to take The Transplant Problem, but remove the secrecy aspect of it? What if people knew that the doctor had made this choice? In all of the previous versions of the problem there was no requirement of secrecy. To be a proper solution to a moral problem, I think that most people would agree that the choice should either be defendable in court, or if the law doesn't currently support it, then it should be modified to make the choice legal. After all, does it really make sense to say, for example, that the right moral choice is to push the fat man off the bridge, but that if you did it, you should go to jail? Morals and laws might get out of sync in practice, but does it make sense to want them to be out of sync in principle? (maybe there is a case to be made for this, and if anyone can think of one, I'd love to hear it!)

So for The Transplant Problem, we need to ask: would we support the law changing in such a way that doctors would be allowed to kill one of their patients if it meant that they could save others? Would you want to live in a society where every visit to your local GP could potentially result in you having your organs harvested, all in the name of the greater good?

I think very few people would support this. And so the key to all of these problems is that our moral intuitions can get pushed in a certain direction when we are only thinking of them in an isolated context, but we can't do that. We need to think about these choices in a broader context where other people might be put in the same position of having to make the choice, and you or people you care about are potentially on the receiving end of those choices. In this context, things can look very different.

Let's now backtrack through the versions of the problem and see if I can now justify my choices:

• The Transplant Problem: As stated, I don't think many people would want to live in a world where doctors harvest the organs of people against their will to save other people's lives. The resulting fear and paranoia, not to mention the obscene violation of an individual's right to be secure in person, would far outweigh the lives saved. So it also shouldn't be okay for a doctor to do this in the case where it was illegal but he didn't get caught.
• The Crashing Plane: In this case, the pilot is an active participant in the scenario. He has created the very threat that is going to cause deaths one way or the other, and his only choice is whether to minimize the number of deaths, so steering towards the lesser populated area is the right thing to do.
• The Fat Man: In this case, you are choosing to sacrifice one person's life to save the lives of others. But by what right do you get to decide that someone should die to save other people? If you were the fat man, would you want to live in a society where other people would decide to kill you for the greater good?
• The Trolley Problem: Whether you push a person to their death or pull a lever knowing that a person will die as a result, we don't have the right to choose to sacrifice one person's life to save others. Unless our actions have already put people's lives in peril and we're simply trying to minimize the damage (as in the crashing plane scenario), we need to respect the right each individual has to be secure in person.

Now, I have to admit that I still have trouble feeling that my choice for the trolley problem is right (and even the fat man, to some degree), but the transplant problem seems much clearer and more obvious to me, and since I can't see a logical difference between them (as opposed to the crashing plane, which I think is different), I have to conclude that it is the correct choice even if my ape brain doesn't like it.

UPDATE:

I thought of something that might make the choice in the trolley problem a little easier to understand, which is illustrated nicely by, of all things, what Batman says to Ra's Al Ghul at the end of Batman Begins: I won't kill you, but I don't have to save you.

There is a moral difference between killing a person and simply not acting to save them, and this is a key part of the trolley problem, where pulling the lever is actively killing a person, while not touching it is not saving five people. While I think that the former is worse than the latter, I'm not sure that this would be true for any number of people. If it was the choice between actively killing one person or failing to save the lives of 1 million people, would the choice be the same. And if not, where is the dividing line? Can we justify having one? This may be a bit like the case for abortion, where most people (who support abortion at all) think that it's somewhere between conception and birth, but actually placing a specific cutoff point seems arbitrary. Or maybe this situation is different, and we can't ever really justify killing one person as the better choice?

Luck and Morality

It's Friday evening. A young man is driving home from work in his car. He's exchanging texts with his friends while he drives, even though he knows it's not a very safe thing to do. He gets too engrossed in reading a particularly funny response from one of his mates, doesn't notice the lights up ahead change to red, and he shoots through the intersection. Lucky for him, no one was coming along the crossroad at the time. However, a police car happened to be waiting at the intersection to go the other way. The police catch him and arrest him. He gets charged with running a red light, perhaps negligence, or whatever the current crime is called in that state for using your phone whilst driving. He probably gets a fine, maybe loses his license.

Now, let's rewind and have the exact same situation take place again. But this time, a husband and wife and their 4 month old daughter are crossing the road at the time the car goes through. He hits them and kills the mother and daughter, with the father being seriously injured and ending up paralyzed from the waist down for the rest of his life. This time, the police arrest him with far more serious charges: multiple counts of manslaughter perhaps, grievous bodily harm, etc. This time he almost certainly goes to jail for a number of years.

The interesting thing here is not that the law responds differently in these two cases, but that we more or less universally agree that the man deserves much harsher punishment in the second case than in the first one.

What is actually different, though? The man's actions are identical in both situations. His intentions are identical. The differences are entirely due to luck, something outside of his control. In one case he got lucky that no one was in the path of his car. In the other case, chance conspired to have people in the path of the car, and a much more grim outcome resulted.

So why does it seem fair to us to punish a person more harshly based on bad luck? We like to think that we have a consistent, logical moral code that we base our sense of right and wrong on, but is that actually the case? Can we justify our moral judgement on this issue, or is this a case of hardwired instincts developed over millions of years of evolution leading us astray?

You might say that we punish the man in the manslaughter case as a deterrent, to set an example for other people and make them more likely not to repeat the man's actions. But if this were true, then wouldn't the deterrent reasoning apply whether or not the man actually hit someone?

What about the argument that the family of the victims needs a harsh punishment to occur in order to feel some sort of closure, or a sense that justice has been served? This is probably getting closer to the truth. Certainly in the case when a person deliberately hits another person with a car and kills them, we can understand why the family of the victims, and to an extent society as a whole, needs to see the perpetrator suffer some kind of punishment. It's not hard to look at our evolutionary, tribal origins to see why this kind of retribution instinct would evolve in humans and have reproductive benefit.

I would argue that we didn't evolve an ability to properly distinguish, on an emotional level, between deliberate and accidental injury caused to us or our loved ones by others, and as a result, even when we logically can see the difference, we can't override the deep emotional reactions that we evolved as a response to these events.

The interesting point about all of this is that even if we can come up with a perfectly logical system of moral reasoning that allows us to determine right and wrong behaviour in any situation, if we have evolved logically inconsistent emotional reactions that warp our sense of right and wrong in certain situations, then we will never fully accept such a moral system. We therefore have to accept that whatever moral system we use as the basis of our justice system, there will be situations where some parties will feel that justice has not been adequately served, no matter how fair and consistent that system is.

---

Inspired by a chapter from the book Everything is Obvious (Once You Know the Answer) by Duncan Watts, which I read a couple of years ago and that chapter in particular has stuck with me ever since.

photo credit (based on): Яick Harris via photopin cc

Being a huge fan of Sam Harris' book, The Moral Landscape, I was intrigued when he announced a contest for people to try and disprove the central argument of his book. You can see the contest details here: http://www.samharris.org/blog/item/the-moral-landscape-challenge1

Given that this is a topic I care greatly about, I spent some time thinking through his arguments along with various ideas on the science of morality that I've been pondering for a while now, and found that I actually had some objections to his thesis after all. So I decided to write an entry in the competition, which I've reproduced below.

I'd love to hear opinions, critiques, or any other feedback from anyone who has read the Moral Landscape. Of course I'm happy to hear from anyone, but this essay probably won't have much meaning if you're not familiar with the book.

The Moral Landscape – A Response

The main flaw that I can see with the central argument of The Moral Landscape is not the concept of using science to uncover truths about how to maximize well-being of conscious creatures, but the extension of this to science being able to give definitive answers, even in principle, about what we ought to do. The reason why I see this as a problem is because it doesn’t seem possible to provide a single, obviously correct definition of what it is that we’re trying to optimize.

Using the Moral Landscape metaphor, in order to work out which peaks are higher than others, or how any two positions on the landscape relate to each other, we need to define what this ‘altitude’ axis actually represents. Since we’re talking about the collective well-being of all conscious creatures, we need some way to aggregate the individual suffering and flourishing of each conscious creature into a single value that can be compared with any other possible state on the moral landscape.

This may sound like a problem in practice rather than in principle, but I would argue that it is very much a problem in principle. I'm not talking about how we would go about, in practice, calculating the well-being of each individual creature in order to arrive at some collective well-being value. The problem is how to define a formula for collective well-being that is clearly correct, and is not just one of many possible ways to define collective well-being. If there is no single, obviously correct way to define the collective well-being of all conscious creatures, then we have multiple ways to compare different states of collective well-being that will result in different answers, and therefore no valid, scientific way that we could say one is better than the other.

Assuming that we can devise some way to measure the well-being of an individual creature, what then? Do we take the average of all creatures and assign ‘heights’ on the moral landscape based on this average, thus making the goal be the highest average well-being of all creatures? Or do we add up all the individual well-being values and simply go for the highest total score? How can we decide, even in principle, which is the more valid way to measure collective well-being?

Further, how do we account for deviation from the mean? Say we have two different states with the same average well-being for all conscious creatures, but in one case, all creatures have the exact same value, i.e. the average value, while in the other one, some are much higher, while some are much lower, but they average out? Should these be equivalent peaks on the moral landscape? Is each as good as the other? How can you scientifically determine that answer, even in principle?

The other major problem here is how to account for creatures with different ‘levels’ of consciousness. How much should we value the well-being of a dog compared to a human? How does our aggregate value of well-being weight the individual values of every type of creature that has some form of consciousness? If we only cared about the well-being of humans we could get away with weighting each creature equally, but it seems reasonable that creatures with the capacity to suffer more and/or the capacity to have more profound positive experiences, should somehow be weighted greater in the global well-being equation than those that do not.

How many puppies should suffer before it’s preferable for a human to suffer? Should human beings intervene in the predator/prey relationships in nature, and the subsequent suffering that these relationships cause to prey? Nature has evolved some truly horrible behaviours that various conscious animals have to endure, and all of this suffering and flourishing needs to be taken into account, along with humans and the animals we choose to look after as pets.

We need to remember that well-being is often a zero sum game. Many choices that affect well-being positively for some creatures, will affect it negatively for others. This is what makes moral science a very different thing to other areas of science such as health. Imagine if, whenever a person took actions that increased their life expectancy by one year, some other person would have theirs reduced by one year? How would the science of health look then? It would suddenly look a lot more like moral science, where we would need to justify exactly what it is we were trying to maximize, and a single definition of health would suddenly become much more important.

Moral science is the study of collective well-being. We can discover all kinds of truths about how to maximize specific aspects of well-being. But there does not appear to be any single, unassailable definition of collective well-being of all conscious creatures, and without this, we cannot rely on moral science to tell us what we ought to do, because moral science can’t tell us what definition of collective well-being we must use.